Ethically Handling the Receipt of Possibly Privileged Information

Dublin Core

Title

Ethically Handling the Receipt of Possibly Privileged Information

Description

Inadvertently sent e-mails that contain privileged information, material negligently included in a discovery response, or employer’s documents taken by a whistle-blower all share a common theme—the materials were not intended to be disclosed to the opposing party. This Article makes two contentions. First, all unintended disclosures should be treated under a single standard that asks whether the privilege holder exercised reasonable care in maintaining the confidentiality of the materials. Second, with respect to the receiving lawyer’s professional obligations, a lawyer who receives materials that may be privileged should be allowed to read the materials: (1) to determine whether the materials are privileged, and (2) to better argue to the court that the materials are not privileged. Reading the material should not result in a finding of improper behavior so long as the receiving lawyer: (1) notifies opposing counsel of receipt of the material, and (2) does not use the material until its status is clarified by the court.

Creator

James M. Fischer

Publisher

St. Mary's Journal on Legal Malpractice and Ethics, St. Mary's University School of Law